Sunday, 11 August 2013

Now these clubs can breath easy

In an earlier post, the blog
had an article on the many facets of CubbonPark and how even today
it is a living park. It not only houses the centre of governance but also plays
a gracious host to highest judicial body of Karnataka.

Incidentally, CubbonPark
and the Karnataka High Court whose premises is situated on the premises of the
park share a strong bond and each is known because of the other.

Coincidentally, the first
public interest litigation (PIL) ever filed in the Karnataka High Court related
to the demolition of the iconic High Court building. The case gathered
widespread attention as many aspects of CubbonPark
too was highlighted during the hearing.

The strong public sentiment
against the demolition forced the then Ramakrishna Hegde Government to drop the
move to demolish the High Court building. Instead, it was compelled to repair
and renovate the old building, while adding an look-alike annexe.

Since then, CubbonPark
has always been the focus of attention.
One of the sitting judges of the Karnataka High Court, Justice M.F. Saldhana,
first took on a batch of cases singlehandedly and ordered the Government and
the authorities to protect the park.

Though this order was later
set aside by a Division Bench, citing lack of jurisdiction, the train of
movements, agitations, citizens’ initiative and public protests for the
preservation of the park received a shot in the arm.

When the Government proved
unequal to the task of protecting the boundaries of the park, the High court
took it upon itself to regularly monitor the upkeep of the vast stretch of
green. When the Government decided to barricade itself in the Vidhana Soudha
and came up with a slew of measures, including construction of grilled
compound, enhanced security, the High Court too sought similar measures for the
park and itself.

The Government then passed
the Preservation Act, 1979 under the provision of KarnatakaGovernmentPark (Preservation) Act,
1975.

This act specifies that no land
should be granted to nor any further constructions be permitted whether
temporary or permanent by any organization or individuals in the Cubbon Park
and Lalbagh areas except the constructions taken up by the Horticulture Department
in furtherance of the objectives of the department.

Subsequently, several NGOs,
environmentalists, nature lovers and even citizens of Bangalore filed cases in the High court
demanding steps to protect the park. One of the first to file a case was Bimal
Desai who had sought eviction of several clubs located on the premises.

Desai said all the clubs - Century
Club, Secretariat Club, Press Club and Karnataka State Lawn Tennis Stadium and
Club were located with the precincts of the CubbonPark.
He had petitioned the High Court seeking a direction to the authorities to evict
the clubs so that the park could be protected.
He had said that CubbonPark, which extended over
300 acres in 1873, had been systematically reduced to less than 190 acres. He
also said that the State Government enacted Karnataka Government Parks
(Preservation) Act, 1975 for saving parks, including the CubbonPark,
from further shrinkage. The Act makes it statutory for the State to maintain
and preserve all parks.

He said even after the Act
was passed, the clubs had come up and that they had constructed buildings in
violation of this order (prohibiting
construction of any temporary or permanent structure). However all these cases
which were clubbed together and were being heard by the First court or the
court headed by the Chief Justice were
dismissed on December 15, 2011 for non appearance of the counsel for the
petitioner (Mr. Desai).
However, the case was restored after the petitioner filed an application for restoration
of the case. When the case came up for hearing, a Division Bench comprising
Chief Justice DHWaghela and Justice BVNagarathna dismissed
the petition on May 28, 2013 following a submission made by Advocate General
Ravivarma Kumar.

The Advocate General had
contended that there is no ground made out for recalling order of
dismissal for default. With the dismissal of this petition, the clubs can now
breath easy. However, what remains unspoken and unsaid is that not only the
clubs but all other outlets and establishments in and around the park have a
responsibility to save, protect, preserve the park.

The Government alone cannot
be expected to do everything. It is the duty of Bangaloreans to take the lead
in making the elected representatives and authorities aware of the need to
retain the present boundaries of the park.

By the way, a 2003 case
relating to CubbonPark contains an injunction against any construction
or alienation of land in CubbonPark of any kind and also
a direction to the authorities to adhere
to section 4(2) of Karnataka Government Parks Preservation Act.

The Act bars any kind of
alienation of park land, including by way of licencing. Despite this order, there
have been reports of organizations blatantly
going ahead with construction without either seeking permission of the court or
the Horticulture Department, which is the custodian of the park.

There were reports of the
KSLTA trying to build a new wing and also the Secretariat Club constricting a
small room to house its generator. Both did not deem it necessary to take the
permission.

Now let us see what the Act
says. The act is reproduced from the Gazette. It is self explanatory. The act
was amended to allow certain constructions for Namma Metro only. So here goes……

KARNATAKA ACT NO. 21 OF 2010

THE KARNATAKA GOVERNMENT PARKS (PRESERVATION)

(AMENDMENT)
ACT, 2009

Arrangement of Sections

Sections:

1.
Short
title and commencement

2.
Insertion
of new section 5

3.
Repeal
and savings

STATEMENT OF OBJECTS AND REASONS

Amending Act 21 of 2010.- It is considered
necessary to amend the Karnataka Government Parks (Preservation) Act, 1975 to
provide for alienation of certain area of Indira Gandhi Musical Foundation Park
to Bruhat Bangalore Mahanagara Palike and Lalbagh to the Bangalore Metro Rail
Corporation Ltd., for the following purposes; namely:-

(i)
for widening of the roads by the Bruhat Bangalore Mahanagara Palike, and

(ii)
for construction of elevated station for Metro Rail Project of Bangalore.

As the matter was urgent and both the Houses
of the Karnataka State Legislature were not in session, the Government of
Karnataka promulgated the Karnataka Government Parks (Preservation) (Amendment)
Ordinance, 2008. (Karnataka Ordinance 4 of 2008)

This Bill seeks to
replace the said Ordinance.

Hence
the Bill.

[L.A.Bill
No. 11 of 2009, File No.DPAL 28 Shasana 2008]

[Entry
18 of List II of the Seventh Schedule to the Constitution of India.]

---

KARNATAKA ACT NO. 21 OF 2010

(First Published in the Karnataka Gazette
Extra-ordinary on the Seventeenth day of May, 2010)

THE
KARNATAKA GOVERNMENT PARKS (PRESERVATION)

(AMENDMENT)
ACT, 2009

(Received
the assent of the Governor on the Seventh day of May, 2010)

An
Act, further to amend the Karnataka Government Parks (preservation) Act, 1975.

Whereas,
it is expedient further to amend the Karnataka Government parks (Preservation)
Act 1975 (Karnataka Act 23 of 1975), for the purposes hereinafter appearing;

Be
it enacted by the Karnataka State Legislature in the fifty-ninth year of the Republic of India as follows:-

1.
Short title and commencement :- (1) This Act may be called the Karnataka
Government Parks (Preservation) (Amendment) Act, 2009. 2

(2) Clause 2 and 3 except clause (c) and (d)
of section 5 to be inserted shall be deemed to have come into force with effect
from 22nd day
of November 2008 and clause (c) and (d) of section 5 shall come into force with
immediate effect.

2.
Insertion of new section 5 :- After Section 4 of the Karnataka Government
Parks (Preservation) Act, 1975 (Karnataka Act 23 of 1975) the following new
section shall be inserted namely:-

“5.
Permission in certain cases :- Notwithstanding anything contained in section
4, the State Government may subject to such conditions and restrictions as it
may impose as regards construction, maintenance, management use and like
matters alienate an area of,-

(a)
1223 sq. mtrs at IndiraGandhiMusicalFountainPark
to the Bruhat Bangalore Mahanagara Palike for the purpose of widening of roads;
and

(b)
1135. 18 sq. mtrs at Lalbagh gardens along the compound wall of west gate
towards western side of the park (presently called R.V. Road) to Bangalore Metro Rail
Corporation Limited for the purpose of construction of elevated Station for
Metro Rail Project of Bangalore”

(c)
2126.71 sq.mtrs area of CubbonPark located between
Vidhana Soudha and Karnataka High Court Building, East: Park area of survey No.
1284; West: Survey No. 570; North: Park area in survey No. 1284 linking to the
nursery and South: Park area of survey No. 1284 opposite to High Court ;

(d)
11,160 sq.mtrs area of Cubbon Park located between East: High Court of
Karnataka in survey No. 1284; West: Existing Road between Vidhana Soudha, and
High Court in the Cubbon Park area of survey No. 1284; North: General Post
Office and South: Cubbon Park area of survey No. 1284.

(2)
Notwithstanding such repeal anything done or any action taken under the
principal Act as amended by the said ordinance shall be deemed to have been
done or taken under the principal Act as amended by this Act.